Article on Church Autonomy and Government Benefits

Whether religious organizations can retain freedom to define their missions while participating in government educational or social-service funding, or tax exemptions, or other benefits programs, is one of the most important -- and challenging -- issues they face these days.  I've posted an article on it, forthcoming in the Georgetown Journal of Law and Public Policy, from an excellent conference held last March in cooperation with the Federalist Society (which also included our own Patrick Brennan).  The article deals with the foundational challenge of how to speak of autonomy when cooperating with government, and then develops some lines of argument for use in important recurring situations.  Here's part of the abstract:

This Article makes the case that religious organizations ought to be able to challenge, in a number of important situations, conditions that exclude them from generally available benefits because of their religious character or practices important to their religious identity. Such exclusions implicate two important Religion Clause values: they pressure the organization to forego its choices in religious matters, and they undercut the ideal, based in church-state separation, of a religious sector operating without government interference or favoritism. The best understanding of church-state separation, I argue, calls not for excluding religious schools or social services from generally available aid, but for allowing them to receive aid for the services they provide without pressuring them to change their religious character. Conditions on benefits can place presumptively impermissible burdens on organizations' religious choices, and they can intrude on core organizational decisions protected by a proper understanding of church-state separation. I apply these arguments to challenge three actual or proposed conditions on benefits: (1) rules that bar government-funded education or social-service programs from considering religion in hiring staff; (2) restrictions on a tax-exempt organization's intervention in political campaigns to the extent they bar a clergy member from expressing moral-political views in her capacity as religious leaders; and (3) proposals, advanced by some commentators, to deny tax exemptions or funding to organizations that restrict clergy positions based on sex or other disapproved grounds.